February 8, 2013
David Rudoi Esq.
People v. McQueen is not the death blow for all dispensaries in Michigan
On Friday February 8, 2013 the Michigan Supreme Court handed down its opinion in the case of People v. McQueen. The Michigan Supreme Court ruled that all patient to patient sales and transfers of medical marijuana are not covered by Section 4 of the Michigan Medical Marihuana Act. Many people see this as the death of medical marijuana dispensaries in Michigan, however, I disagree with this view. Keep in mind that People v. McQueen is not a criminal case and only involves the issue of whether a city can declare a dispensary operated in a way similar to Companionate Apothecary, LLC as a public nuisance and therefore can permanently enjoin its operation. Due to the fact that Companionate Apothecary, LLC had a model of operation in which they claimed to merely facilitate patient to patient sales the Michigan Supreme Court ruled that it could be ruled as a public nuisance and therefore could be enjoined from operation.
The Supreme Court used cloudy logic in order to rule that patient to patient transfers are not encompassed in section 4 immunity. The Court relied on the text of Section 4(d) to come to its conclusion. The Court stated: “[t]he text of § 4(d) establishes that the MMMA intends to allow ‘a qualifying patient or primary caregiver’ to be immune from arrest, prosecution, or penalty only if conduct related to marijuana is ‘for the purpose of alleviating the qualifying patient’s debilitating medical condition’ or its symptoms. The Court focused on the “the” contained in section 4(d)’s language to determine that since the transferor is not alleviating their own medical condition or its symptoms by transferring medical marijuana to another than that act is not protected under Section 4.
People v. McQueen did not rule that no dispensary could be protected by Section 4 of the MMMA
There are still conceivable modes of operation a dispensary could adopt which would allow them to be in compliance with Section 4 of the MMMA, and thus, be immune from criminal prosecutions. The case rules that Caregiver to Patient transfers and sales of medical marijuana are protected under the Michigan Medical Marihuana Act Section 4 as long as the sale is from primary caregiver to the patient whom he or she is connected through the Michigan Medical Marijuana registry. Therefore, it is possible for a dispensary to operate in such a way that would be in compliance with Section 4 of the MMMA.
People v. McQueen does not rule that dispensaries are precluded from asserting Section 8 of the MMMA
The Michigan Supreme Court expressly ruled in section C of People v. McQueen that although a dispensary may not be eligible for Section 4 immunity it may still be entitled to a Section 8 affirmative defense. The court did not expressly rule on whether Companionate Apothecary, LLC would be entitled to a Section 8 defense because this was not a criminal case and Section 8 only applies to “prosecutions involving marijuana”. Since this case was not a “prosecution involving marijuana” the Supreme Court ruled that Section 8 does not apply to the case at hand and did not analyze whether Section 8 would protect patient to patient sales or transfers of Medical Marijuana.
People v. McQueen ruled that sales of medical marijuana are included in the definition of medical use under Section 3(e) of the Michigan Medical Marijuana Act
The Michigan Supreme Court in People v. McQueen overruled the Michigan Court of Appeals on the issue of whether the “sale” of medical marijuana fits the definition of “medical use” contained in Section 3(e) of the MMMA. Section 3(e) defines medical use as “acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.” The Court of Appeals ruled that since the word “sale” was not expressly included in this definition that all sales of medical marijuana are not protected in any way by the Michigan Medical Marijuana Act.
The Michigan Supreme Court Expressly overruled the Appeals Court on this issue. They ruled that because Section 3(e) included the word “transfer” in the definition of “medical use” it implicitly included “sales” as well. The Supreme Court reasoned that since the term transfer was not defined anywhere in the MMMA the rules of statutory construction require that the dictionary definition should be consulted in order to define “transfer”. The definition that they in turn used for the term “transfer” was : “[a]ny mode of disposing of or parting with an asset or an interest in an asset, including a gift, the payment of money, release, lease, or creation of a lien or other encumbrance.” The dictionary definition of sale that was used was: [t]he transfer of property or title for a price.” Thus, based on these definitions the Supreme Court reasoned that for a court to rule that that a transfer does not encompass a sale “is to ignore what a transfer encompasses.” Furthermore, the term sale is not expressly excluded from the definition of medical use anywhere in the MMMA.
People v. McQueen Overruled the recent Appeals Court Case: People v. Green
In People v. Green the Michigan Court of Appeals ruled that uncompensated transfers of medical marijuana were in fact protected under Section 4 of the MMMA. People v. McQueen effectively overrules that conclusion because even the uncompensated transfer would not be for the purpose of alleviating the transferor’s medical condition or the symptoms of that medical condition. Therefore, the uncompensated transfer of medical marijuana between patients is not protected under Section 4 of the MMMA.